Supreme Court takes an honest look at 'honest services' prosecutions

A few months ago, I wrote about how the federal government has been making federal crimes out of otherwise legal behavior through the overbroad law making it a federal crime to deny anyone your "honest services" - whatever that means.

I quoted attorney and author Harvey Silverglate:

The title of his latest book is “Three Felonies a Day.”

That’s the number of potential federal crimes the average citizen commits between waking up and going back to sleep each day, he says.

“There’s this increasingly vague federal criminal law that can be used to get any person for anything,” Silverglate told me when I got him on the phone.

In his book he cites an anecdote about a game federal prosecutors would play while sitting around after hours. One would name a public figure, such as Mother Teresa or John Lennon, and the other would have to come up with a federal offense for which the person could be indicted.

They never failed, perhaps because they can fall back on such old reliables as the “honest services” clause of the federal mail fraud statute, which outlaws “any scheme of artifice to deprive another of the intangible right of honest services.”

The constitutionality of that clause is now before the U.S. Supreme Court and Justice Antonin Scalia, perhaps the most conservative member of the court, is leading the charge to have the statute declared unconstitutional.

Well, Harvey got that one right. The Supreme Court just remanded a number of prosecutions on "honest-services" fraud to lower courts for further examination. As the Wall Street Journal notes:

While all nine Justices concurred in the judgment, three Justices said they would have gone further and junked the entire statute. In an opinion joined by Clarence Thomas and in part by Anthony Kennedy, Justice Antonin Scalia wrote that the statute is so vague that it violates due process rights under the Fifth Amendment. And he scored the majority for cooking up the bribery and kickback interpretation of the law "all on its own."